Public Knowledge has six copyright-related proposals Congress could pass now.

The battle over implementation of the Anti-Counterfeit Trade Agreement in Europe is heating up, while the war of words over the Stop Online Privacy Act is still in play. Rightsholders have called critics of these measures "demagogues" and "dirty tricksters," but the critics show no sign of retreating from their opposition.

The fight against copyright maximalism has largely been negative. To offer something more positive, Public Knowledge (PK for short) has released an Internet Blueprint—six bills that the group says could "help make the internet a better place for everyone" and that "Congress could pass today."

We're not expecting Congress to pass them today (or tomorrow), but they're at least an intriguing start point for debate. Here's a quick version each.

Shorten copyright terms

The current copyright protection time window is quite large: life of the creator plus a whopping 70 years (or 95 years total for corporate authorship). It's hard to believe that when the Republic was young, copyright lasted 14 years, renewable by another 14.

"Continually expanding the term of copyright comes at a cost," the new Blueprint contends. "By giving an author a monopoly on an expression, it prevents other people from building on that expression to create new works."

The Public Knowledge reform proposal isn't particularly radical, though—it would reduce most copyright terms to life of the author plus 50 years, or "a flat 50 years if the author was an employee."

Stop abuses of the DMCA

The Digital Millennium Copyright Act allows copyright holders and their representatives to file takedown notices against sites that they claim are hosting infringing content. The original content poster can file a counter-notice, but the content still has to stay down for ten days.

The problem, PK says, is that right now there isn't much risk in sending a site a bogus takedown notice. "When it comes to takedown notices, it often seems like alleged infringers are assumed guilty until proven innocent," the Blueprint contends.

The proposed fix: Harmed defendants should be able to ask for damages from $200 to $2,500. A judge should be able to boost that upper limit forfeit by a factor of ten if she finds that the takedown demander was lying.

Cracking DRM

At present, if you deploy some kind of device to cut through the DRM on a DVD, you are a law breaker, even if you plan to utilize the copyrighted content legally. Public Knowledge has been calling on Congress to address this inconsistency for quite some time (as has Ars Technica's Tim Lee), allowing users to bypass digital locks if they're doing so for non-infringing purposes.

"That means that only lawful uses—such as uses with the copyright holder's permission, fair uses, or other uses under limitations and exceptions to copyright law—could legally circumvent DRM under these changes," PK's recommendation observes. The odds of this happening are slim to none; despite telling everyone who will listen that all of their works are being shared on the Internet, big rightsholders argue that making circumvention software legal in any scenario will lead to even more pirating of their works.

Stop copyright bullying

Some copyright lawsuits aren't about copyright infringement, PK warns. They're really about targeting speech that the plaintiff doesn't like. So the group wants lawmakers to create a special procedure, a "motion to strike," that would allow defendants to ask a judge to consider this possibility if the suit poses "a significant harmful effect on free expression."

The motion would suspend the expensive discovery phase of a trial until the judge makes her call on the motion. Public Knowledge's proposed legislation would also legalize "transient" copies.

"A simple fact of digital devices is that they necessarily make copies of the things that they process," the Blueprint points out. "This technicality creates liability where there should be none—for instance, it should be uncontroversial that a CD player with a buffer to prevent skipping shouldn't need a license in order to play a CD."

Make "fair use" fairer

You might believe that you have deployed copyrighted content for some fair use, but if a judge disagrees, you could find yourself on the hook for up to $150,000 in statutory damages per infringing use. Public Knowledge wants Congress to pass an amendment that would eliminate statutory fines if a defendant shows that he thought he had reasonable grounds for believing his use of a work was fair (the plaintiff could still sue for actual damages caused by the use).

"The fair use doctrine in copyright is designed to allow the public to make use of works without permission of the original author," the Blueprint notes. "The risk of a lawsuit, however, often hinders people from taking advantage of all that fair use has to offer."

Finally, Public Knowledge wants legislation requiring the US Trade Representative to publicly disclose any copyright or intellectual property-related proposals it makes to drafts of trade agreements. And any USTR advisory groups, which general include plenty of people from the "industry," should include "representatives of the public interest unaffiliated with industry."

"Our goal is for people and organizations to propose their own ideas that can also be turned into draft legislation on other topics that will evolve into a positive agenda for Internet change," says PK's Michael Weinberg.

I can see the industry's argument on cracking DRM. Legalize tools for breaking it, even if they can be used for "fair use" purposes, and it's not much different from not having DRM at all. That is going to be a hard sell. Still, I agree it shouldn't be illegal to circumvent DRM if the actual use of the copyrighted material itself is legal.

The fair use points are also problematic. "I didn't know" is a huge, huge legal loophole. I can't imagine enshrining that as law.

But the points about copyright terms, penalizing unfair use of the DMCA, and free speech -- those should not even be controversial. It's amazing that they are.

I can see the industry's argument on cracking DRM. Legalize tools for breaking it, even if they can be used for "fair use" purposes, and it's not much different from not having DRM at all. That is going to be a hard sell. Still, I agree it shouldn't be illegal to circumvent DRM if the actual use of the copyrighted material itself is legal.

All of this is predicated on what should have been perceived all along as an absurdity: that legal mechanisms should be used to enforce technical restrictions. If companies want to use cryptosystems to keep consumers from using their content, that's their business—but the idea that the Long Arm of the Law should be on hand to keep us in line if we try to circumvent the preferences of our corporate masters is clearly, mind-bogglingly silly.

Of course, "silly" has never been much of a disqualifier for law in the past…

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

Except that authors will start disappearing like Iranian nuclear scientists. Make it life plus a reasonable waiting period.

The point of copyright is to promote the useful Arts and Sciences. To that end we give creators monetary incitements. What is the argument for giving them money after their death? To give their kids money? Like when my employee keeps paying my kids my salary after I die? Oh wait...

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

The flaw with that statement is someone who's 29, married, 2 kids, creates something wonderful that is copyrighted as an artist. It sells very well making a nice penny for a year and then all of a sudden he's hit by a bus and killed. Should the copyright end there? Or should it be protected for the proposed 50 years after death so his family can continue to benefit from his work as if he were still alive? I'm with the extension. Corporate created copyright should not be so long though. I'm in agreement with you there.

On copyright limits: I think 50 years is a good base for commercial content, but I do not want it that long by default. I propose 25 years, plus 15 year extensions such that the content is still commercially viable and active at the time of reapplication, maxing at 75 years total. Publish something once, you get 25 years. License it to others or build a franchise yourself which continues the copywritten content (say "The Wheel of Time saga", started in 1990 and still publishing new books today) is very much still "active" and would get a 15 year extention on the "content" or basis of the story/world, and each book individually published would have a 25 year copyright individually extendible, but 75 years after 1990, only additional books would have 25 year copyrights and they would not be extendible (derivitive works don't carry individual protections other than from publish date itself under my idea).

I think this is totally reasonable, and gives public domain access to stale works much sooner while allowing active businesses time to protect their rights, and protect derivative works as well through a reasonable lifespan of content, but not infinetly.

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

Except that authors will start disappearing like Iranian nuclear scientists. Make it life plus a reasonable waiting period.

The point of copyright is to promote the useful Arts and Sciences. To that end we give creators monetary incitements. What is the argument for giving them money after their death? To give their kids money? Like when my employee keeps paying my kids my salary after I die? Oh wait...

Because otherwise you create an incentive to expedite the death of the content creator.

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

Except that authors will start disappearing like Iranian nuclear scientists. Make it life plus a reasonable waiting period.

The point of copyright is to promote the useful Arts and Sciences. To that end we give creators monetary incitements. What is the argument for giving them money after their death? To give their kids money? Like when my employee keeps paying my kids my salary after I die? Oh wait...

This argument doesn't hold as well. creating something, such as art can be compared to creating a company that builds widgets. That company makes a fortune and when the creator dies, he leaves the company to his kids. The artist is not so different in that the creations are art instead of a company, but the end result is the kids can benefit from the art as they would have if it were a company.

That's a great list, but it's focus on U.S. law and there's an entire world out there, one now very wired together. I'd add another. The U.S. should get behind a long overdue revision of the Berne Convention, which hasn't been significantly changed since the late 1970s, and igoverns copyright internationally.

Yes, that wouldn't be easy.

* The U.S. and Europe view the purpose copyright differently. We place a much greater stress on rewarding creators financially as well as the freedom to use the works of others in creative ways (fair use). Europe caters more rights of artists as creators in the artistic sense (fragile egos). I'd hate to see us get caught up in some of the messiness of droit d'auteur, but at least we could agree to disagree.

* Orphan works (meaning the small percentage of actual ones) can't be handled without doing something about Berne's strong resistance to registration requirements. Without regularly updated registration, the costs of locating an author or his heirs makes republishing most book uneconomical even when the author and a publisher, brought together, could easily agree.

* Deep-pocketed special interests (i.e. Hollywood) would try to bend the treaty to their benefit, particularly with nasty, government-funded enforcement. But they're already doing that with national and EU laws. A good treaty might limit the harm they can do, particularly in the area of fair use.

* Global treaties tend to be dominated by the U.S. Europe and the the larger Asian countries. The less developed world is likely to disrupt that until their issues are dealt with. But that needs to be done anyway. Countries that feel the rules are stacked against them will just ignore treaties.

Finally, at the national level I'd add that the state laws that govern wills need to be updated to clearly designate who inherits a person's literary estate. Today it often ends up falling into the messy residuals clause, even for authors as famous as John Steinbeck. Who now owns a person's creative works ought to be as clearly designated at probate as who now owns their home.

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

The flaw with that statement is someone who's 29, married, 2 kids, creates something wonderful that is copyrighted as an artist. It sells very well making a nice penny for a year and then all of a sudden he's hit by a bus and killed. Should the copyright end there? Or should it be protected for the proposed 50 years after death so his family can continue to benefit from his work as if he were still alive?

Not to be funny, but yes it should end when the author dies. The reason for copyright is to encourage invention, not set someone's family up for life. If the inventor is dead, then who is being encouraged to invent more?

It's all nice an emotional about how his poor family can't eat now; but that's not for the public to fund, it's for the breadwinner to fund by either investing or insurance.

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

Except that authors will start disappearing like Iranian nuclear scientists. Make it life plus a reasonable waiting period.

In which case, why not make copyright a flat amount of time with reasonable options to extend, such as zelannii's proposal above? Make it independent of the life of the creator. [edit] Make it short enough that the public domain will be enriched in a reasonable amount of time, but long enough that it is impractical to try to suppress the work until it falls into the public domain and can be freely exploited. [/edit] That way if the hypothetical 29 year old parent of two gets hit by a bus a year after his work is created, it still stays under copyright for the duration of the term, with that copyright being inherited as part of his estate.

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

Except that authors will start disappearing like Iranian nuclear scientists. Make it life plus a reasonable waiting period.

Just make it a flat 30 years regardless of the life of the author. 20 years if they are an employee of a corporation. I would actually accept those terms. 50 years is still too long. I would like stuff to enter the public domain before my kids are grandparents. Also, DRM should minimally have a term equal to the copyright life of the work. Once the copyright has ended, the DRM should not be illegal to break under any law. IMO, breaking DRM for fair use purposes should also not be illegal, but it will be a cold day in hell before the DMCA is repealed. The point about transient copies is well taken, should be common sense; however, the MAFIAA has never demonstrated common sense when talking about transient copies or even copies which clearly fall under fair use.

Civil suits for punitive damages should be legal if someone uses copyright bullying tactics. e.g. automated bots sending completely erroneous takedown notices for Time Warner or a grandma who has never owned or used a computer getting sued for Online piracy once the accuser learns of their situation. Criminal charges should be imposed if the takedown notice blatantly violates civil rights such as free speech.

Finally, in the spirit of the 8th Amendment to the Constitution, the MAFIAA should only be able to sue for actual damages rather than $150,000 per song/movie/etc. Bankrupting someone for life is cruel and unusual punishment, especially so since the penalties for much more heinous crimes are much less severe.

This argument doesn't hold as well. creating something, such as art can be compared to creating a company that builds widgets. That company makes a fortune and when the creator dies, he leaves the company to his kids. The artist is not so different in that the creations are art instead of a company, but the end result is the kids can benefit from the art as they would have if it were a company.

Oh wait?

Unfortunately, it is that simple. A company creates jobs, is a person in it's own right as far as existence goes. A work is just that: something I created which is no further use to anyone else other than the value you and I put on it. A company, on the other hand, could be worth millions or it could be worth pennies: but you and I have no actual say on that.

Most of all, owning a company doesn't just automatically get you money - even if it's the most popular company in the world. A company earns money by performing service/selling goods/etc. In other words: you either work (or hire people to work), or you get no money from the company. Ok, so you could sell ownership - but then you are selling SOMETHING again, even if it is just customer good will.

A copyright hugely differs in that it really needs no work to maintain. It is stagnant - the creation has completed.

14 plus 14 renewable sounds fair. I'd also call for initial registration for copyright protection . no registration application & $25 fee paid congruent to publication, no copyright. skip renewal, then back into the public domain where we all benefit potentially. Renewal fee based on percentage of net sales. (rights holders pay their own way instead of externalizing that cost onto the rest of us)

And if a work not available for sale/licensing during the entire fourteen year period, then no renewal. I'm sick of software vendors especially killing viable products to push on on to the next great thing, which often works no better than the one you can't get anymore.

Why should copyright have anything to do with life of the author? Make it 50 years, 25 automatic, 25 if you register it after that. If patents expire without the life of the inventor having anything to do with it, why should copyright be any different?

Anyway, i agree strongly with reducing the term, the current term does not benefit rightsholders more than a fractional amount in the scheme of things, and does harm the public commons a great deal.

I can see the industry's argument on cracking DRM. Legalize tools for breaking it, even if they can be used for "fair use" purposes, and it's not much different from not having DRM at all. That is going to be a hard sell. Still, I agree it shouldn't be illegal to circumvent DRM if the actual use of the copyrighted material itself is legal.

All of this is predicated on what should have been perceived all along as an absurdity: that legal mechanisms should be used to enforce technical restrictions. If companies want to use cryptosystems to keep consumers from using their content, that's their business—but the idea that the Long Arm of the Law should be on hand to keep us in line if we try to circumvent the preferences of our corporate masters is clearly, mind-bogglingly silly.

Of course, "silly" has never been much of a disqualifier for law in the past…

DRM has to have a legal component. Basic cryptographic principals state that you can keep something secret by having secret content or having a secret key. In order to work you need one or the other. But DRM requires that you give the user both the content and the key. Otherwise the user wouldn't be able to decode the content to use it. The only way to make DRM work is to make it illegal to expose the key.

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

I think it's totally reasonable for a copyright holder to expect their next-of-kin to be able to keep gathering the profits in lieu of their parent/spouse continuing to collect it. 70 is too long, but 0 is far too short. Consider the 28yo author with two kids who dies in a car accident. Instantly out of copyright? No good.

Why should copyright have anything to do with life of the author? Make it 50 years, 25 automatic, 25 if you register it after that. If patents expire without the life of the inventor having anything to do with it, why should copyright be any different?

Yup, this. Shouldn't matter if the work is owned by a company or person -- copyright should be the same length regardless.

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

The flaw with that statement is someone who's 29, married, 2 kids, creates something wonderful that is copyrighted as an artist. It sells very well making a nice penny for a year and then all of a sudden he's hit by a bus and killed. Should the copyright end there?

YES!

Quote:

Or should it be protected for the proposed 50 years after death so his family can continue to benefit from his work as if he were still alive? I'm with the extension. Corporate created copyright should not be so long though. I'm in agreement with you there.

This argument is, quite simply, absolute bullshit. If I am killed today, my family doesn't have some automatic right to the income I no longer generate. If someone wishes to provide for family in the event of their deaths, there's this neat thing called life insurance that does that. That someone created a nifty work shouldn't be a reason for their family to profit decades after their death.

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

Except that authors will start disappearing like Iranian nuclear scientists. Make it life plus a reasonable waiting period.

The point of copyright is to promote the useful Arts and Sciences. To that end we give creators monetary incitements. What is the argument for giving them money after their death? To give their kids money? Like when my employee keeps paying my kids my salary after I die? Oh wait...

Because otherwise you create an incentive to expedite the death of the content creator.

I'm sorry, that's pure insanity. That could be used as an argument against life insurance too. Who believes someone's going to knock off an author in order to start using the characters that author created? The idea simply stretched credulity beyond its breaking point.

To all those of you making emotional arguments about the 28yo author who dies and his poor grieving widow and kids - totally not the point.

If I get a raise at work because I'm just that brilliant to deserve it and buy a large house because I can now afford that mortgage, but then die (or perhaps the company just shuts down) leaving my poor widow and my kids unable to even stay under the roof of our house, let alone earn any money! Won't somebody think of the children and keep paying them my salary?

It doesn't matter - life happens and sometimes it sucks - whether you are a creator or a common worker. Deal with it! Why is copyrighted works any different?

As for those saying people would start killing creators to get things out of copyright - don't be absurd, please. Murder is still illegal and lots of people stand to gain by murder every frigging single day without doing the deed. Come on - that's below even trolling level!

Copyright should be life of author - not a year more, and in the case of work done as an employee perhaps 30 years tops. But I'd settle for the 50 years they propose.

I think it's totally reasonable for a copyright holder to expect their next-of-kin to be able to keep gathering the profits in lieu of their parent/spouse continuing to collect it. 70 is too long, but 0 is far too short. Consider the 28yo author with two kids who dies in a car accident. Instantly out of copyright? No good.

So, I agree with the poster above. We need fixed length periods.

I'd suggest something like 15 to 20 years original copyright, no registration required. After the original copyright term the owner can renew for an additional 15 to 20 years but (s)he must register and that registration proccess would require proof of ownership plus a registration fee. Subsequent renewals would be allowed but with each renewal the registration fee goes up considerably (200% ?). This allows the "House of Mouse" to maintain the copyright on Steamboat Willie as long as they're willing to pay registration fees (would need to be financially beneficial) while forcing orphan works and works no longer profitibale into the public domain. Since it's a fixed term for everyone there is no "life of the author" BS and all that entails when you are dealing with an immortal corporation.

The fair use points are also problematic. "I didn't know" is a huge, huge legal loophole. I can't imagine enshrining that as law.

It has been enshrined in law for centuries, the doctrine of "mens rea". It is the difference between manslaughter and murder, and often the difference between a tort and a crime. It is the basis of the Sarbanes-Oxley Act of 2002, notable for its phrase "...knew or should have known...".

Life of the author based terms are rooted in the Berne Convention's idiotic philosophy of copyright as a 'moral right' of authors, as opposed to the practical philosophy of public enrichment that the US constitution demands. Such terms are bad all across the board. They are less predictable, make finding out whether something is in or out of copyright difficult, and create unequal protection to different parties. because men and women, blacks and whites, lefties and righties, old and young, smokers and non-smokers, and countless other factors have different remaining life expectancies. Just go with a fixed term relative to publishing. Then a book has the same amount of protection whether it was printing 20 years before the author dies or 20 years posthumously.

I should probably add that I'm fine with a fixed length copyright term too - 20 or perhaps 30 years sound ok to me - preferably in two parts so you'd need renewal/registration for the last 10-15 years, although really I think we could do with much less and still fulfill the point of copyright.

However, I'd agree with life of author on the principle that the author is the one that deserves to profit from the work he/she did. If there are really people here that think authors would be murdered over copyrights (ridiculous) then by all means go with the lesser fixed term. I guess an advantage of that is that everyone knows exactly how long they have to profit.

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.